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label them as such); and, more often than not, WHAT IS THE DIFFERENCE they are well versed in many aspects of ETWEEN UBSTANTIVE constitutional law, particularly those aspects B S addressing due process and equal protection. But AND PROCEDURAL LAW? they have no experience with procedure. No [P]rocedural wonder the question often arises—exactly what is “ AND HOW DO I procedural law and how do I research it? laws are the RESEARCH PROCEDURE? Substantive laws are “the part of the law that creates, defines, and regulates the rights, duties, door to 1 BY KRISTIN B. GERDY and powers of parties.” Substantive laws govern people and organizations in their daily litigation. Kristin B. Gerdy is a Visiting Assistant Professor of Law interactions—they are the “laws” that nonlawyers ” at Temple University Beasley School of Law in usually think of when they think about what law Philadelphia, Pennsylvania. is. For example, the substantive law of torts says an Teachable Moments for Students … is designed uninvited guest cannot intrude upon another to provide information that can be used for quick and person’s land; the substantive law of estates governs accessible answers to the basic questions that are the formalities necessary to draft an “air-tight” frequently asked of librarians and those involved in will; and the substantive law of corporations teaching legal research and writing. These questions dictates how a limited-liability corporation must present a “teachable moment,” a brief window of be formed. However, a different set of laws, which opportunity when–because he or she has a specific we call procedural law, governs what happens need to know right now–the student or lawyer asking when a party challenges that will or corporate the question may actually remember the answer you formation in court.2 In other words, procedural provide. The material presented in this column is not laws are the door to litigation.3 They set forth meant to be an in-depth review of the topic, but “[t]he rules that prescribe the steps for having a rather a summary of the main points that everyone right or duty judicially enforced, as opposed to the should know. It is a companion to the Teachable law that defines the specific rights or duties Moments for Teachers column that gives teachers an themselves.”4 opportunity to describe a special moment of epiphany It may be easier to think of procedural laws as that changed their approach to presenting a particular the “rules” that govern litigation—the rules the topic to their students. Readers are invited to submit parties must follow as they bring their case and the their own “teachable moments for students” to the rules for the courts’ administration. These rules editor of the column: Barbara Bintliff, University of proscribe such things as who gets to bring cases, Colorado Law Library, Campus Box 402, Boulder, which courts those cases are brought before, how CO 80309, phone: (303) 492-1233, fax: (303) the cases proceed through the judicial process, the 492-2707. rules of proof, the available remedies, and the Civil Procedure. The mere utterance of the manner in which the judgment is enforced. phrase strikes fear into the hearts of many Procedural law is created either by the legislature, American law students. It is generally the most by the judiciary, or by a combination of the two. hated and least understood course in the first-year Procedural laws have three major purposes. First, curriculum. While it is true that procedure may not have the drama of torts or the intrigue of 1 Black’s Law Dictionary® (7th ed., West 1999). constitutional law, why is it that students are 2 See Fleming James, Jr., et al., Civil Procedure § 1.1 (4th almost universally put off or at least confused by ed., Little, Brown & Co. 1992). procedure? Perhaps the biggest obstacle to 3 See Karl N. Llewellyn, The Bramble Bush: On Our Law and Its Study 16 (1930). (“[P]rocedural regulations are the door, understanding procedural law is that students and the only door, to making real what is laid down by don’t have experience with it as they do with other substantive law. Procedural regulations enter into and condition “substantive” law. Before they come to law school, all substantive law’s becoming actual when there is a dispute. … [W]hat substantive law says should be means nothing except in most students can recognize a contract; they terms of what procedure says that you can make real.”) understand the concept of torts (even if they don’t 4Black’s Law Dictionary (7th ed., West 1999).

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they help courts conduct their business. Second, commentary on the rules. She may also want to they establish uniform procedures within the locate model forms that give examples of courts. Finally, they provide information and documents that comply with the rules. Finally, she instruction to those appearing before the courts, will want to ensure that the rules she has found are It is not whether they are attorneys or the parties still in force. Let’s explore the various tools she “ themselves.5 might consult. always easy It is not always easy to distinguish substance from procedure. Sometimes courts deem the rules Rules of General Application to distinguish that seem procedural to be of substantive Four sets of rules make up the federal rules of importance. For example, in Bolton v. Travelers general application. They are the Federal Rules of substance from Insurance Co.,6 the court held that a statute of Civil Procedure, the Federal Rules of Appellate limitations was substantive, but rules governing Procedure, the Federal Rules of Criminal procedure. the time for answer and appearance were Procedure, and the Federal Rules of Evidence. ” procedural.7 These rules govern practice before all courts within the federal system. 8 Researching Procedural Law Perhaps the most readily accessible source of Procedural law can be found in legislation, in federal rules of general application is a specific rules promulgated by courts, and in cases that rules pamphlet, which is sometimes called a interpret the rules. Because court rules make up the “deskbook.” This single-volume, unannotated largest body of procedural law, such laws are often pamphlet typically contains the text of all four sets generically referred to as “rules” or “court rules.” of federal rules and any related statutory Court rules can be divided into four categories: provisions. 1) rules of general application, like the Federal Federal rules of general application are also Rules of Civil Procedure and the Federal Rules of included in the United States Code. The Federal Evidence, which are applicable in all federal Rules of Criminal Procedure is located in the courts; 2) “local” rules for individual courts within Appendix to Title 18, while the Federal Rules of the federal system; 3) statutory rules, rules that are Civil Procedure, Federal Rules of Appellate part of the statutory compilation rather than a set Procedure, and the Federal Rules of Evidence are of specific “court rules,” the most common being located in Title 28. statutes of limitations; and 4) state rules, which are In addition, the Federal Rules of Civil applicable in the courts of the issuing state. Procedure and the Federal Rules of Appellate In addition to the rules themselves, the Procedure are available in their unannotated form thorough researcher will want to locate cases in the “Finding Aids” volume of Federal Rules interpreting relevant rules and possibly Service, a West Group publication available in many law libraries. 5 J. Myron Jacobstein et al., Fundamentals of Legal Research While the text of the rules themselves is vital 251 (7th ed., Foundation Press 1998). information for the researcher, often it is not 6 475 F.2d 176 (5th Cir. 1973). enough. Fortunately, annotated versions of the 7 But see Sun Oil Co. v. Wortman, 486 U.S. 717, 736 (1988) (Brennan, J., concurring). (“Statutes of limitations, rules are readily accessible in the annotated however, defy characterization as either purely procedural or versions of the United States Code. In addition to purely substantive. The statute of limitations a State enacts represents a balance between, on the one hand, its substantive the text, the rules’ annotations contain Advisory interest in vindicating substantive claims and, on the other hand, Committee comments, editorial annotations, and a combination of its procedural interest in freeing its courts from references to commentary on the rules. In LEXIS® adjudicating stale claims and its substantive interest in giving individuals repose from ancient breaches of law.”) Publishing’s United States Code Service, the Federal 8 Many legal research texts provide in-depth explanations of Rules of Evidence are located in the Appendix to procedural law research, typically under the heading “Court Title 28; other rules are located in numerous Rules.” See, e.g., Robert C. Berring & Elizabeth A. Edinger, “Court Rules” volumes at the end of the set. West’s Finding the Law (11th ed., West Group 1999); Morris L. Cohen ® & Kent C. Olson, Legal Research (7th ed., West Group 2000); J. United States Code Annotated follows the same Myron Jacobstein et al., Fundamentals of Legal Research (7th ed., schema used in the United States Code—with the Foundation Press 1998); Christina L. Kunz et al., The Process of Federal Rules of Criminal Procedure following Legal Research (4th ed., Little, Brown 1996).

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Title18 and the Rules of Civil Procedure, Federal researchers working in state courts locate and Rules of Appellate Procedure, Federal Rules of follow state rules. Evidence, Supreme Court Rules, Claims Court State procedural law is either incorporated into Rules, and the Rules of the Court of International the state’s statutory compilation or published in Trade following Title 28. supplemental “rules” volumes. Sometimes a single [I]n order to The rules are also available electronically on state uses both methods. For example, Utah’s “ both Westlaw® and LEXIS. Consult a current Rules of Criminal Procedure are incorporated into thoroughly database directory to locate the appropriate Title 77 of the Utah Code. However, the Utah database within the service. Rules of Civil Procedure are located in a separate research “Court Rules” volume at the end of the code. Local Rules Sometimes publishers assist researchers by procedural In addition to the generally applicable rules, the publishing both the state and federal rules for the thorough researcher must identify any rules that jurisdiction in one set. California has two versions law, the govern the particular court in which she will appear, of its annotated code. Each has supplemental rules rather than the entire court system. For example, volumes. West’s version has two volumes, California researcher there are rules for the U.S. Court of Appeals for the Rules of Court–Federal and California Rules of Tenth Circuit or for the district courts. These rules Court–State. The LEXIS version combines the state must go to are called “local” rules, and often they are and federal rules into one volume, titled Rules of supplemental to the rules of general applicability, Court and Ninth Circuit Rules. the cases. which are also enforced within the courts. ” While pamphlet editions of local rules are Judicial Interpretations sometimes available, the best source for local rules of Procedural Law is Federal Local Court Rules. A part of the Federal In addition to the text of the rules themselves Rules Service, Federal Local Court Rules includes and any commentary found in annotations, it is rules for each of the federal district courts. Among often necessary to locate judicial interpretations of the district court provisions are civil, criminal, procedural law. As with any case law, judicial bankruptcy, general and calendar matters, interpretations and applications of procedural law admiralty, and magistrate judge rules. In addition, are mandatory in the courts where they originate Federal Local Court Rules includes the individual and in lower courts within that jurisdiction; they rules for the 13 courts of appeals and the internal also may be persuasive elsewhere, particularly in operating procedures for the courts of appeals. jurisdictions with similarly worded or identical provisions. So, in order to thoroughly research Statutory Provisions procedural law, the researcher must go to the cases. Because the legislature has the power to enact Because procedure is integral to every lawsuit, procedural law, and often does, provisions that more often than not procedural issues are include procedural requirements can be found intermingled with substantive issues in a lawsuit. scattered throughout the United States Code. The This being true, many interpretations of federal most obvious examples are the provisions relating procedural law are found in the general federal to habeas corpus in Title 28. Although these reporters (the three reporters containing United procedural laws can be located by using the States Supreme Court decisions, the Federal general index to the Code, the more approachable Reporter® for U.S. courts of appeals decisions, and source for these provisions is the jurisdictional the Federal Supplement® for U.S. district courts rules pamphlet edition mentioned above. decisions). However, when a federal district court case specifically addresses the Federal Rules of State Rules Civil Procedure or the Federal Rules of Criminal Typically state procedural law is quite similar to Procedure, it is published instead in the Federal federal procedural law. In fact, often the language Rules Decisions® (FRD). Part of West’s National of the rules, as well as their organization and Reporter System®, the FRD has all the features of numbering, closely track the corresponding federal other West reporters, such as headnotes and key compilations. However, it is critical that numbers. It also contains proposed changes to the

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rules and commentary on the rules, which are practice. Major federal form sets include written by judges and law professors. Bender’s Federal Practice Forms, which contains Often the first place federal cases involving cross-references to Moore’s Federal Practice 2d; procedural issues appear is West’s Federal Rules Nichols Cyclopedia of Federal Procedure Forms; Procedural law Service. A section of the Service contains federal West’s Federal Forms, which includes both civil and “ cases construing the Federal Rules of Civil criminal forms that are annotated with references doesn’t have to Procedure and the Federal Rules of Appellate to Federal Practice and Procedure; and Federal Procedure. Procedural Forms, Lawyers Edition. be scary, and it Cases interpreting state procedural rules are seldom published because such issues are usually Citators doesn’t have to resolved at the unreported trial level. However, Finally, before concluding procedural law those cases that do reach the appellate courts are research, the researcher must make sure that the be dry, but it published in the general state reporters—either the rules she has found are still valid. Shepard’s Federal National Reporter System regional reporters or Rules Citations includes citations to the Federal does have to other state reporters. Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Appellate be strictly Commentary on Procedure, the Federal Rules of Evidence, and Procedural Law corresponding state rules, as well as all state and followed. When a researcher confronts a particular federal cases involving procedural issues. Citations ” procedural issue for the first time, commentary to procedural rules can also be found in United can help her understand its requirements and States Citations–Statutes and individual state identify areas that may require further analysis. Shepard’s compilations. Numerous treatises and hornbooks provide commentary on procedural law, particularly on the Conclusion rules of general applicability. Commentary sources Procedural law doesn’t have to be scary, and it typically contain the text of the statutes and rules doesn’t have to be dry, but it does have to be strictly followed by analysis of the rules, citations to cases, followed. Legal researchers and law students simply and other explanatory material.9 need to understand that procedural laws are the Citations to additional commentary on rules for the legal “game” and they open the door procedural law can be found through the rules for litigation. When students are equipped with the sections of Shepard’s® Federal Law Citations in basic sources for finding and learning these rules, Selected Law Reviews. they are ready to enter! Form Books © 2000 Kristin B. Gerdy Because procedural law provides the requirements for all documents filed in court, researchers can benefit from sets of model forms that illustrate the documents used in federal

9 Major treatises on civil procedure include Cyclopedia of Federal Procedure (West); Federal Procedure, Lawyers Edition (West); Stephen W. Feldman, et al., West’s Federal Practice Manual (3d ed., West 1996); James Fleming, Jr., et al., Civil Procedure (4th ed., 1992); James W. Moore, et al., Moore’s Federal Practice (3d ed., 1997); Charles A. Wright, The Law of Federal Courts (5th ed., West 1994); and Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure® (2d ed., West 1982). Major treatises on criminal procedure include Wayne R. LaFave, et al., Criminal Procedure (2d ed., West 1999); and Orfield’s Criminal Procedure Under Federal Rules (2d ed., West). Major treatises on evidence include Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence: Commentary on the Rules of Evidence for the United States Courts and State Courts (Matthew Bender 1975); and McCormick on Evidence (John W. Strong ed., 5th ed., West 1999).

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